Second Amendment: Illinois Gun Ban Struck Down

On December 11, in a major win for Second Amendment rights, a three-judge panel of the U.S. Seventh Circuit Court of Appeals threw out Illinois’s virtual ban on the carrying of any guns, whether concealed or otherwise.

In Moore v. Madigan, the state of Illinois claimed that there was no historical evidence of a “generally recognized private right to carry arms in public in 1791, the year the Second Amendment was ratified.” The Seventh Circuit rejected that view, criticizing the state for asking the court to repudiate the Supreme Court’s historical analysis in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).

Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” McDonald held that the Second Amendment is applicable to the states. But as the Seventh Circuit noted, neither case directly addressed whether the Second Amendment creates “a right of self-defense outside the home.”

Illinois’s law was one of the strictest in the county, forbidding anyone from carrying a weapon “ready to use (loaded, immediately accessible—that is, easy to reach—and uncased)” with limited exceptions for police, hunters, and members of target shooting clubs. The ban did not apply to a person on his own property or in his own home or place of business. But even carrying an unloaded gun in public is prohibited.

The Seventh Circuit refused to “engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home.” The court concluded that self-defense “is as important outside the home as inside.” Illinois had failed to meet the burden of justifying its “uniquely sweeping ban” by an increase in public safety.

Although the court found the Illinois statute unconstitutional, it stayed its finding for 180 days to “allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment…on the carrying of guns in public.”

This decision sets up a likely split in the federal courts of appeal. Last week, a three-judge panel of the U.S. Second Circuit in Kachalsky v. County of Westchester refused to overturn a New York law that limits concealed carry permits only to those who can show a “proper cause” for a weapon. Although the statute does not define “proper cause,” state courts have established that “proper cause” requires demonstrating “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” The Second Circuit found that limiting handgun possession in public “to those who show a special need for self-protection” does not violate the Second Amendment.

One can imagine a strained way to harmonize those two federal court rulings, since the Illinois and New York statutes are somewhat different, but the most logical reading is that one court applied the Second Amendment correctly and the other did not. The lawyer who lost in the Second Circuit, Alan Gura, prevailed in the Supreme Court in Heller and McDonald. Gura will now either ask the entire Second Circuit en banc to reconsider its erroneous panel opinion or file a petition for certiorari with the Supreme Court to hear the case. Illinois has the same options in the Seventh Circuit.

Assuming neither court changes its opinion, the split makes it much more likely that the Supreme Court will accept at least one of the cases for review, perhaps as early as next fall. Thus, we may soon find out whether the Second Amendment protects the right to both keep (inside the home) and bear (outside the home) arms, as a plain reading of the text and history seems to provide.

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative. Read his research.

HALLELUJAH! Maybe NOW the crime wave in Murder-town Chicago, will subside . . . maybe NOW when the smart-arse thugs are faced with a .45 or even a measely .38, they'll turn tail & run as fast as they can, (with baggy jeans hangin' down below their you-know-what), back to their mama to hide behind her skirts.__Stat's tell us 92% of these rough-tough big boy babies disengage as soon as they're looking down the barrel of a pistol. That's WHY these bad boys LOVE GUN CONTROL, 'cause then they're the only ones out on the street with the fire power.__WHEN will the lib's EVER figure that out??!!__

That's all we need another vacillating supreme court justice that doesn't know what he is. Well I think its quite clear, Roberts is a closet liberal. Any supreme court justice that can rule on proposed law based on 'fairy tale' assumptions is a liberal. True constitutionalists render justice based on fact, not assumptions.

In today's Obama world, that's all anyone has to do is step out of their home to be exposed to dangers that require the carrying of a fire arm. In particular Chicgo where black gangs (oh, I'm not supposed to say black) are killing each other and other citizens every day. Do we not remember what history has taught us, the very first act any dictator employs is to disarm the people.

Lloyd I couldn't agree more with your last sentence….the point of the 2nd amendment. The intent was an armed society to protect the nation (citizens) from all governments both foreign and domestic. While the US military is the strongest in the world and we have no fear of being attacked by foreign governments, we need arms to protect ourselves against our own US government. You can’t look at our current situation of security in this context because the spirit of the 2nd amendment is contained in a situation we’ve never seen as an American people and hopefully never have to. If you think this is nonsense and could never happen in modern times look at Syria right now where the government has superior arms vs the citizens. Yes only single shot muskets were available at the time of the writing of the 2nd Amendment but that’s not the point. The point is common people need to have some level of arms capability to what is available by current militaries to somewhat be able to defend themselves against any government foreign or domestic. I would guess if you were to go back in time to the 1920′s and ask 6 million Jews living in “modern, safe” Europe if they felt unsafe and needed the right to bear arms they would’ve told you ” you’re crazy”….

the right to defend oneself applies wherever oneself is. It's ridiculous to question where one has a right to defend oneself when not on their property. Oneself is one's property!! The second amendment does not specify the types of arms one can bare because they considered the intelligence of man good and bad, would advance beyond muskets leaving this appropriately and wisely, unspecified. As long as man has the ability to kill and die, the civility of man has a right to defend himself with arms.

How nice. An Illinois court finally acknowledges a RIGHT existing since 1789; ruling we can now get a CCW "permit" in IL. Be advised: so called "permission" is NOT required to exercise a Constitutional RIGHT. That's why I always carry a concealed handgun during my frequent flights to Chicago & will continue doing so, with or without a courts " permission". The only thing I can say about this correct decision is these judges finally stopped taking their daily dose of STUPID PILLS.

Although I agree with the precautionary action of FR8DOG mentioned in his or her reply, I can't figure out how this person can carry a concealed weapon during their frequent flights to Chicago (unless it's in the checked baggage). Is transportation security lax on Chicago flights or does this person have special connections?

The understanding of those who wrote the Constitution must be considered and not outru=ight rejected.
I believe that Noah Webster clearly provided the basis for my personal ownership of an F-22 fighter plane. I only wish that I could affore one.

Here is the quotation t which I refer.

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." –Noah Webster, An Examination of the Leading Principles of the Federal Constitution, 1787

Clearly Mr. Webster saw the right to carry arms as s method to keep the federal government in line rather than the other way around.

I wanted to share an idea which came to me that can solve these school shooting tragedy's. I believe the U.S. government should allow school teachers who can get qualified by the D.O.J. to carry a firearm on school campus, and they should provide them with a bolted safe in their classrooms to prevent theft, and they can be prepared to open their safe and take action in case of any life threatening emergencies. That would be a greater solution than to take freedom away from law abiding citizens.

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